TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: March 23, 2012
RE: Rule 9, N.D.R.Crim.P., Warrant or Summons Upon Indictment or Information
Judge Kleven made a motion at the January meeting to delete the requirement in Rule 9 (b)(1) that the clerk sign the warrant. The motion was tabled for research on the requirement.
Rule 4 requires a specific official - the magistrate - to issue and sign the arrest warrant. Rule 9 allows the institution of the court, and its representative the clerk, to issue an arrest warrant or summons on an indictment or information. The magistrate is not mentioned in Rule 9.
The federal rule uses the term "judge" in Rule 4 and "court" in Rule 9. Fed.R.Crim.P 9 appears to contemplate the U.S. attorney bringing an indictment (or an information with an affidavit of probably cause) to the clerk and getting a warrant or summons without having a judge involved. The version of the federal rule that was in place when N.D.R.Crim.P. 9 was drafted even gave the clerk the duty of delivering the warrant or summons to the process server. A copy of the former Fed.R.Crim.P. 9 is attached.
Staff located several federal cases where the defendant tried to prove that a warrant not signed by a judge was defective, but the courts ruled that, if the warrant had been issued under Rule 9, signing by clerk alone was sufficient. It appears that the lower standard under Rule 9 is acceptable because an indictment or information is a more developed document than a complaint.
As written, our Rule 9 may allow the clerk to issue a warrant or summons without action by the magistrate. The explanatory note indicates that prosecution by indictment or information cannot take place unless probable cause has been established, so the magistrate's participation in issuing the warrant or summons seemingly is not necessary. Practice and recent statutory and rule amendments, however, may have blurred the once clearly separate roles of the complaint and the information. Therefore, the Committee may wish to discuss whether a rethinking of Rule 9 is needed to reflect the current role of the indictment, information and complaint. If, in practice, it is the magistrate who issues a warrant or summons under Rule 9, perhaps "magistrate" could be substituted for "court" and "clerk" in the rule.
In the general discussion of criminal rule amendments at the January meeting, State v. Hayes, 2012 ND 9, was brought up. A copy of the case is attached. Under Hayes, a magistrate must make findings before imposing pretrial release conditions. Rule 9(b)(1) allows the "court" to "fix the amount of bail and endorse it on the warrant." This language does not seem appropriate under Hayes, given that bail is a pretrial release condition. Similar language was removed from the federal rule in 2002 because it was considered inconsistent with the 1984 Bail Reform Act. Proposed amendments to Rule 9 that would remove this language are attached.